Friday, July 14, 2017

Owners of cargo ship that hit USS Fitzgerald destroyer may be liable for damages

The USS Fitzgerald and the Philippine-flagged container ship MV ACX Crystal collided early in the morning on June 16. Not much new information has been released since the last article I wrote on the issue. However there have been some developments.

The U.S. Navy announced that it had temporarily relieved the commander of the Fitzgerald for medical reasons. The captain was in his cabin at the time of the collision and was injured. Seven sailors were killed. There are at least six ongoing investigations including two US Navy internal hearings and an investigation by the US Coast Guard.  There is also an investigation by the Japanese Coast Guard.

So far there has been no explanation as to how the Fitzgerald with sophisticated equipment and lookouts sailing in clear conditions at night was hit by a huge cargo ship three times it size before it saw the ship coming and took evasive action. The captain of the cargo ship claims that it had given warning signals of flashing lights to the Fitzgerald almost ten minutes before the collision.

The Fitzgerald is in dry dock. The US wants to take it back to the US for repairs but is making temporary repairs first to ascertain if it can go back under its own steam or must be towed. The cost of replacing the Fitzgerald would be almost $2 billion. The ship is 21 years old. Even if the repair costs are less it will still be hundreds of millions of dollars. The costs of repairs to the cargo ship ACX Crystal will be far less.

A recent article  by Lawrence Brennan a former US Navy Captian and an adjunct professor of law at Fordham Law School discusses the complicated legal situation faced by the owners of the ACX Crystal as well as the US Navy. 
USS Fitzgerald damageImage of the damaged USS Fitzgerald. NHK Newsweb
Brennan an expert on maritime law notes that there are still many factual issues open and also legal issues. The collision will involve, lengthy, complicated, and expensive problems. 

One problem for the owners of the ACX Crystal is that the captain continued on towards port even after the collision and came back only after he had gone some distance and some time later. As Brennan writes: 

"If, however, the steel-on-steel collision impact generated sparks, as commonly occurs during collision, the bridge watch should have seen the “shower of sparks." In any event, ACX Crystal failed to stand by and render assistance to the Fitzgerald as required by law. This serious failure could be proof of inattention by ACX Crystal’s bridge watch and look outs or an unusual attempt to “runaway” but the ship apparently returned to Fitzpatrick about an hour later." The Crystal did return and at that time reported the incident to the Japanese Coast Guard.

Brennan says that from  the limited information available it appears probable that the blame will be shared by the operators of both vessels, and that legal liability will be apportioned on the basis of the relative causal faults of each. Because of the huge difference in the claim amounts of the two vessels, the ACX Crystal will probably not want to bring an action against the US even if it could. It will more likely try to initiate a limitation of liability proceeding in order to limit the amount of the claims of the US, the estates of the dead sailors, and of those surviving but injured. 

Interestingly, the estates of the seven dead sailors and surviving members may be able to bring suit against ACX Crystal owners, but it is precluded from bringing suit against the US under the Feres doctrine which bars service members generally from claims for injuries sustained while on active duty.

The investigations into the collision are certainly slow in releasing any new information as to what exactly happened in this bizzare accident which should not have happened.

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